Orchatect End-User License Agreement

Orchatect End-User License Agreement

Last Updated: 12/1/2023

This End-User License Agreement (Agreement) is between the business or individual accepting this Agreement (this business or individual being you) and Orchatect Inc. (Provider). This Agreement is solely between you and Provider and governs your use of Provider’s software application and the corresponding services it provides (together, along with the associated documentation, proprietary, or intellectual property: the Maestro). 

  1. The Maestro

1.1 The Maestro will provide you with the ability to: integrate your Point Of Sale (POS) system, Accounting software or other systems as required in your contract, into the Maestro solution to support your business with business insights and manage your multi-franchise, multi-location services from one platform.

1.2 Provider grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (defined below) of this Agreement to use the Maestro solely for your internal business purposes. You will not otherwise distribute, lease, rent, host, sublicense, transfer, sell, export, modify, reverse engineer, decompile, copy, benchmark, create derivative works from, or attempt to derive the source code for the Maestro. This license does not grant you any rights to Provider’s (or any other third party’s) trademarks, service marks, logos, trade dress, proprietary, or other intellectual property unless provided with the Maestro. Provider reserves to itself (or applicable third parties) all right, title, interest, and license (express or implied) to the Maestro that are not specifically granted to you under this Agreement. You will preserve and display any proprietary notices, markings, or branding associated with use of the Maestro.

1.3 The Maestro may update automatically from time-to-time, and you may be required to accept these updates to continue using the Maestro. Provider may perform maintenance on the Maestro, which may result in service interruptions or delays from time-to-time. Provider may not support older versions of the Maestro. You are solely responsible for obtaining all equipment and services (for example, Internet connectivity) necessary to access and use the Maestro.

  1. Fees

You will pay the Provider a monthly fee for your use of the Maestro, which will be collected through the payment method you select during the contract set-up for the Maestro. You are responsible for payment of all sales, use, excise, or similar taxes (excluding taxes based on the Provider’s income) imposed by federal, state, or local tax authority. You must notify the Provider of any billing errors within 120 days from when an error appears on your invoice, after which you release the Provider from all liability for Losses (defined below) resulting from these errors.

  1. Term

This Agreement commences when you accept or otherwise download, install, copy, or use the Maestro; and will continue month-to-month until termination (this period of time is the Agreement’s Term).

  1. Suspension and Termination

4.1 Provider may promptly suspend or terminate your use of the Maestro if (1) you violate this Agreement’s terms; (2) Provider believes your use of the Maestro may damage its reputation or intellectual property rights; (3) Provider suspends or terminates its agreement(s) with any third party involved in providing the Maestro; (4) you exceed normal and reasonable usage for the Maestro; (5) you experience a bankruptcy or insolvency event; or (6) you are using the Maestro for any fraudulent, illegal, or unauthorized purpose, or engage in willful misconduct with respect to use of the Maestro.

4.2 You may terminate this Agreement at any time and for any reason (without cause) by providing notice to Provider. Your termination will be effective at the end of the current month or billing period in which you give notice. You will not receive a refund for the billing period in which you terminate this Agreement.

  1. Confidentiality, Data, and Ideas

5.1 Neither of us will disclose non-public information about the other’s business; including, without limitation, the terms of this Agreement, technical specifications (whether related to the Maestro or otherwise), customer lists, or information relating to a party’s operational, strategic, or financial matters (together, Confidential Information). Confidential Information does not include information that (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each of us will implement and maintain reasonable safeguards to protect the other’s Confidential Information.

5.2 Neither of us may disclose the other’s Confidential Information except (1) to our respective directors, officers, employees, or representatives that need to know it in order to perform our obligations under this Agreement; (2) in response to a subpoena or court order; or (3) as required by applicable law, rule, or regulation.

5.3 Provider may use data or information obtained through the Maestro to provide its services, for research and development, or in aggregated and anonymized form to provide services generally; all subject to applicable Laws (defined below). Information Provider collects about you or your consumers is subject to Provider’s privacy policy, which is accessible at www.orchatect.com/privacy.

5.4 You may provide, or Provider may invite you to provide, comments or ideas about the Maestro (including, without limitation, improvements to it) (together, Ideas). By submitting any Ideas, you agree that (1) they are not Confidential Information; (2) they are not subject to any use or disclosure restrictions (express or implied); (3) you claim no rights in them; and (4) Provider has no obligation to notify or compensate you in connection with their disclosure or use. You release Provider from all liability or obligations that may arise from the receipt, review, disclosure, or use of any Idea that you submit.

  1. Account

You will be required to register for an account with Provider to use the Maestro. You will provide us with accurate information when setting-up your account and will maintain your account with current information. You will be responsible for establishing safeguards designed to prevent unauthorized access to, disclosure, use, or alteration of your account (safeguards may include, without limitation, usernames, passwords, security questions and answers, or other credentials). You must notify Provider if you discover a security breach involving your account or the Maestro. You are responsible for any unauthorized access to, disclosure, use, or alteration of your account, the Maestro, or other transaction information that arises through your systems or account. It is your responsibility to back-up and maintain the accuracy and completeness of any content created, derived from, stored, or accessed through your account or your use of the Maestro (content may include, without limitation, transaction information, text, images, graphics, or photos).

  1. Risk Allocation

7.1 The Maestro is provided “as-is” and “as-available.” You are solely responsible for determining if the Maestro meets your needs. Provider disclaims all warranties (express or implied) related to your account or the Maestro, including, without limitation, warranties of security, merchantability, fitness for a particular purpose, non-infringement, accuracy, and uninterrupted or error-free operation. Provider is not responsible for any disclosures, modifications, deletions, or other errors that arise in connection with your use of the Maestro due to its interaction with other applications or their content.

7.2 You will indemnify Provider, its directors, officers, employees, agents, subsidiaries, and affiliates against any third-party claims for losses, damages, costs, or expenses (including reasonable attorneys’ fees) (together, Losses) that result from your use or misuse of the Maestro, or your breach of this Agreement. Provider may assume the defense of any third-party claims that you must indemnify it for (at your expense), and you will cooperate with the defense of these claims. You will not settle any third-party claims involving more than the payment of money without Provider’s written consent.

7.3 To the extent permitted by applicable law, Provider will not be liable to you for any lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages; regardless of whether these damages were foreseeable or either of us was advised they were possible.

7.4 Provider’s total, aggregate liability to you for all Losses arising from any cause (regardless of the form of action or legal theory) in connection with this Agreement will not exceed the amount of fees you’ve paid to Provider during the 3 months prior to a Loss.

  1. Communications

You authorized Provider to communicate with you electronically or otherwise using the contact information you provide to it (e.g., without limitation, via your account, the Internet, email, text, or live agent or automated calls to your mobile or other phone, even if these numbers appear on a Do Not Call or other non-solicitation registry). You are responsible for any fees charged by you communications provider for phone, text, or email communications that Provider sends to you.

  1. Compliance with privacy laws

The Maestro Provider makes the following additional commitments, representations, and warranties to Customer:

9.1 The Maestro Provider will only process Customer Data and Personal Information on behalf of, and as Service Provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to perform the Maestro Provider’s obligations under this Agreement, as permitted under CCPA and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will the Maestro Provider “sell” (as defined by Privacy Laws) any such personal information.

9.2 The Maestro Provider will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal Information available for Maestro Provider’s own commercial purposes or in a way that does not comply with the CCPA or other Privacy Laws.

9.3 Maestro Provider will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose.

  1. Data subject rights – assistance with requests

10.1 Maestro Provider will reasonably cooperate and assist Customer with meeting Customer’s CCPA and Privacy Law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, considering, the nature of Maestro Provider’s processing, and the information available to Maestro Provider. Maestro Provider will make available to Customer, in a manner consistent with the functionality of the Service and Maestro Provider’s role as a Service Provider of Personal Information of data subjects, the ability to fulfill data subject requests to exercise their rights under Privacy Laws.

10.2 If Maestro Provider receives a request from Customer’s data subject to exercise one or more of its rights under Privacy Laws in connection with the Services, Maestro Provider will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where possible, by using the functionality of the Services. Maestro Provider shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

10.3 Maestro Provider must notify the Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates to either party’s compliance with Privacy Laws relating to provisioning of the Services.

  1. General

11.1 You represent and warrant that you have authority to enter into this Agreement, creating performance obligations that are legally enforceable against you.

11.2 Provider may modify this Agreement from time-to-time and will provide you with notice when these modifications occur (notification may be through the Maestro, email, a website, changes to the date shown at the top of this Agreement, or other electronic means). Your continued use of the Maestro indicates your acceptance of any modifications to this Agreement. You must stop using and uninstall the Maestro if you do not agree to any modifications that are made to this Agreement.

11.3 Each of us will comply with the laws, rules, and regulations (together, Laws) that apply to our respective performance under this Agreement; including, without limitation, laws related to the collection and use of consumer information obtained via the Maestro. You will follow the requirements of all user documentation provided for the Maestro. You will not use your Maestro to access, store, or transmit materials that are tortious, libelous, or offensive; contain malicious code, viruses, time bombs, Trojan horses, bots, scrips or other programs; or infringe third parties’ intellectual property rights.

11.4 This Agreement is governed by Texas law, without regard to its conflicts or choice of law statutes. The courts in or for Dallas County, TX are proper venue for any proceedings in connection with this Agreement. Both of us waive our rights to a trial by jury in connection with this Agreement.

11.5 This is the entire agreement between us, and supersedes any prior agreements related to its subject matter. Any sections or terms of this Agreement that are, or become, invalid or unenforceable will be severed; and the remaining terms will continue in effect. Provider is not waiving any of its rights under this Agreement if it delays their exercise or fails to exercise them. We are independent contractors. This Agreement does not create an agency, partnership, or joint venture of any kind.

11.6 You may not assign this Agreement without Provider’s written consent, which assignment is voidable by the Provider; however, Provider may assign this Agreement without notice to you or your consent.

11.7 You may contact Provider at: devops@orchatect.com, 2100 N. Greenville, Suite 1100, Richardson TX, (866)